Citation Nr: 18146691 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 15-03 045 DATE: November 1, 2018 ORDER The reduction of the rating for residuals of prostate cancer with urinary dysfunction was proper and restoration of the 100 percent rating is denied. A 60 percent rating for residuals of prostate cancer with urinary dysfunction is granted from May 1, 2014 to March 17, 2017, subject to the laws and regulations governing the payment of monetary awards. A 100 percent rating for residuals of prostate cancer with urinary dysfunction is granted beginning on March 17, 2017. REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A February 2014 rating decision reduced the rating for the Veteran’s service-connected status-post prostate cancer with urinary dysfunction from 100 percent to 20 percent, effective May 1, 2014. 2. At the time of the February 2014 rating decision, the 100 percent rating had been in effect for more than five years. 3. The February 2014 rating decision was based on a VA examinations and clinical records and at the time of the reduction, the preponderance of the evidence demonstrated an overall improvement in the service-connected prostate cancer. 4. From May 1, 2014, the residuals of prostate cancer manifested predominantly by voiding dysfunction requiring four or more absorbent materials per day. 5. On March 17, 2017, diagnostic testing showed recurrence of prostate cancer. CONCLUSIONS OF LAW 1. The reduction of the 100 percent rating for prostate cancer residuals was proper. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.105, 3.344(c), 4.115b, Diagnostic Code 7528 (2017). 2. For the appeal period from May 1, 2014 to March 17, 2017, the criteria for a 60 percent rating for r residuals of prostate cancer with urinary dysfunction have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 38 C.F.R. §§ 3.102, 4.115b, Diagnostic Code 7528 (2017). 3. From March 17, 2017, the criteria for a 100 percent rating for prostate cancer have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.115b, Diagnostic Code 7528 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from November 1965 to August 1967, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In January 2015, the Veteran requested a hearing before a Veterans Law Judge. He withdrew his hearing request in July 2018. In an October 2017 rating decision, the agency of original jurisdiction (AOJ) granted a 100 percent rating for residuals of prostate cancer with urinary dysfunction, effective September 25, 2017. However, a higher rating is available for prostate cancer is available prior to this date. The Veteran is presumed to seek the maximum available benefit for a disability. As such, this claim is still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Prostate Cancer The Veteran asserts that the reduction of his prostate cancer rating was improper to the extent that he should receive higher compensation due to voiding dysfunction, which required him to change absorbent materials approximately five per daily. See, e.g. Statement attached to Notice of Disagreement (March 19, 2014); Substantive Appeal (January 14, 2015). Historically, the Veteran was diagnosed with prostate cancer in May 2005. In a March 2009 rating decision, the RO granted service connection for prostate cancer and assigned a 100 percent rating, under Diagnostic Code 7528, effective November 7, 2008. In February 2011, the Veteran underwent brachytherapy, which involved implanting radioactive seed implants into the affected tissue. Since that time, the Veteran experienced erectile dysfunction and voiding dysfunction. See, e.g., VA examination (October 2014). In December 2012, the Veteran was scheduled for a mandatory VA examination, which along with all subsequent evidence of record, showed that his prostate cancer was in remission. The December 2012 VA examination also showed that the Veteran’s cancer treatment residuals resulted in voiding dysfunction, but did not require wearing of absorbent material. In February 2013, VA proposed to reduce the Veteran’s rating for prostate cancer. In March 2013, the Veteran reported that voiding dysfunction required approximately five absorbent pads per day or to be very close to a bathroom: explaining that he has little or no warning prior to voiding In February 2014, the RO reduced the rating for prostate cancer, from 100 percent to 20 percent, effective May 1, 2014. In October 2014, a VA examiner found that the Veteran’s prostate cancer was in remission and that voiding dysfunction required approximately two absorbent pads per day. In January 2015, the Veteran reasserted that he uses approximately five absorbent pads per day: explaining that voiding dysfunction has rendered him unemployable. He also submitted a log of his urinary frequency from June 2014 to October 2010. On March 17, 2017, a VA treatment provider diagnosed prostate cancer based on the Veteran’s prostate specific antigen (PSA) levels. In April 2017, a VA examiner confirmed that PSA levels evidence prostate cancer recurrence and noted that the Veteran used less than two absorbent materials per day. In May 2017, the RO denied a rating in excess of 20 percent for prostate cancer, reasoning that the VA Adjudications Procedures Manual (M21-1) requires that a diagnosis of be based on biopsy. On September 26, 2017, VA biopsy confirmed recurrence of prostate cancer. In October 2017, the RO assigned a 100 percent rating for the Veteran’s prostate cancer, effective September 25, 2015. 1. Propriety of Reduction, effective May 1, 2014 The Board finds that the reduction of the Veteran’s 100 percent rating for prostate cancer effective May 1, 2014, was proper. First, the RO complied with the procedures set forth in 38 C.F.R. § 3.105(e) and notified the Veteran of the proposed rating reduction, as well as his rights in challenging this proposed reduction, in a rating decision in February 2013 and a letter dated in February 2013. The reduction was then assigned in a February 2014 rating decision, effective May 1, 2014. Thus, the notice requirements for a reduction of a rating have been met. Second, the RO afforded the Veteran a VA examination in December 2012, which was more than six months after discontinuance of brachytherapy in February 2011, and thus, in accordance with the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7528, Note. Evidence of recurrence is discussed below. Third, the December 2012 and October 2014 VA examinations show sustained material improvement under the ordinary conditions of life as the Veteran’s prostate cancer remained in remission. Additionally, these examinations were as complete as the February 2009 examination that served as the basis for granting service connection and the initial 100 percent rating for prostate cancer. Accordingly, the December 2012 and October 2014 VA examinations provided sufficient evidentiary bases to reduce the Veteran’s 100 percent rating for prostate cancer, which had been in effect from November 2008 to April 2014, that is, more than five years. See 38 C.F.R. § 3.344; Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). In sum, the reduction of the Veteran’s 100 percent rating for prostate cancer effective May 1, 2014, was proper. 2. A 100 Percent Rating for Prostate Cancer, effective March 17, 2017 Effective March 17, 2017, a 100 percent rating for active prostate cancer is warranted. As detailed above, March 17, 2017 was the date clinicians first determined that the Veteran’s prostate cancer had recurred. While earlier treatment records note progressively increasing PSA levels since brachytherapy, the Veteran was not diagnosed with prostate cancer until March 17, 2017. The diagnosis was subsequently confirmed via biopsy on September 26, 2017. Historically, the AOJ denied an effective date prior to September 25, 2017, for a 100 percent rating for prostate cancer on the basis that the VA Adjudications Procedures Manual (M21-1) requires that prostate cancer be diagnosed by biopsy. See Rating Decision (May 2017). However, the diagnosis by biopsy is not necessary in addressing the recurrence of prostate cancer. The Board further notes the regulations relevant to the evaluation of prostate cancer do not require diagnosis by biopsy and that the provisions of the M21-1 are not substantive rules and thus not binding on the Board. See Overton v. Wilkie, 17-0125, Vet. App. (Sept. 19, 2018). 3. Evaluation of Prostate Cancer Residuals: May 1, 2014 to March 17, 2017 The Veteran seeks a rating ine excess of 20 percent for prostate cancer residuals during the period the cancer was in remission, which spanned from May 1, 2014 to March 17, 2017. Under Diagnostic Code 7528, prostate cancer is rated 100 percent following surgery with a mandatory VA examination at the expiration of six months following the end of active therapy. If there has been no local reoccurrence or metastasis, the disability is rated on the basis of voiding dysfunction or as renal dysfunction, whichever is predominant. To put it another way, Diagnostic Code 7528 contemplates that, once therapeutic procedures have ceased, there is a reduction in disability ratings to cover only those aftereffects of the prostate cancer and therapeutic procedures that adversely affect the veteran’s ability to function under the ordinary conditions of daily life. That is, a reduction of the rating is expected once there is no reoccurrence and the disability is rated on the residuals. Tatum v. Shinseki, 24 Vet. App. 129, 143 (2010). As detailed above, the Veteran’s prostate cancer residuals resulted predominantly, if not exclusively, in a voiding dysfunction. There is no evidence of kidney dysfunction. Under 38 C.F.R. § 4.115a, voiding dysfunction may be rated on the basis of either urinary leakage, frequency, or obstructed voiding. A 20 percent rating is warranted for voiding dysfunction requiring the wearing of absorbent materials which must be changed less than two times per day. A 40 percent rating is warranted for voiding dysfunction requiring the wearing of absorbent materials which must be changed two to four times per day. A 60 percent rating is warranted for voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. The Board finds that a 60 percent rating is warranted on the basis of voiding dysfunction. Throughout the relevant portion of the appeal, all correspondence submitted directly from the Veteran consistently states that he uses four or more absorbent materials per day. See Statement (March 19, 2014); Substantive Appeal (January 14, 2015). The reports directly from the Veteran are the most probative evidence pertaining to his voiding dysfunction, particularly given the highly personal nature of this symptom. Additionally, the Board finds no reason to question the credibility of the Veteran’s reports. The Board acknowledges that a VA examiner and even the Veteran’s representative have reported less frequent voiding dysfunction, but finds that their reports are less probative than those received directly from the Veteran. See VA examination (October 2014); Brief (August 15, 2018). After resolving any doubt in the Veteran’s favor, the Board finds that from May 1, 2014 to March 17, 2017, a 60 percent rating for prostate cancer residuals is warranted. The Board notes there is evidence of erectile dysfunction that is a residual of the prostate cancer and treatment. Erectile dysfunction has already been evaluated under its own diagnostic code. The Veteran has been in receipt of special monthly compensation based upon the loss of use of his creative organ (i.e., his erectile dysfunction). See 38 U.S.C. § 1114(k). Thus, it is not necessary to further discuss this residual. The Board finds that no other residuals or symptoms in the record appear related to his prostate cancer, nor is there evidence that the Veteran should be rated for any additional disabilities or under a different diagnostic code to cover any service related symptomology not otherwise covered by Diagnostic Code 7528. REASONS FOR REMAND The Veteran seeks a TDIU, asserting that he is unable to work due to the frequency of his urinary interruptions. See, e.g., Substantive Appeal (January 2015). At this time, further information regarding the Veteran’s employment and occupational history is needed to decide the claim. Accordingly, remand is needed. The matter is REMANDED for the following action: Give the Veteran an opportunity to clarify his work history and submit a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in addition to any additional evidence that is relevant with regard to his claim for a TDIU. Kristy L. Zadora Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Castillo, Counsel